Supreme Court weighs campaign contribution limits

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A protester waved a flag with corporate logos and fake money outside the Supreme Court.

By Adam LiptakNew York Times
October 09, 2013

WASHINGTON — The Supreme Court on Tuesday seemed prepared to strike down a part of federal campaign finance law left intact by its decision in Citizens United in 2010: overall limits on direct contributions from individuals to candidates.

The justices seemed to divide along familiar ideological lines, and they articulated starkly different understandings of the role of money and free speech in American politics.

“By having these limits, you are promoting democratic participation,” Justice Ruth Bader Ginsburg said. “Then the little people will count some and you won’t have the super-affluent as the speakers that will control the elections.”

Justice Antonin Scalia responded, sarcastically, that he assumed “a law that only prohibits the speech of 2 percent of the country is OK.”

Chief Justice John G. Roberts Jr., who probably holds the crucial vote, indicated that he was inclined to strike down overall limits on contributions to several candidates, but perhaps not separate overall limits on contributions to several political committees.

The case, McCutcheon v. Federal Election Commission, No. 12-536, is a sort of sequel to the court’s 2010 decision in Citizens United, which struck down limits on independent campaign spending by corporations and unions. The new case is an attack on the other main pillar of federal campaign finance regulation: limits on contributions made directly to political candidates and party committees.

The case was brought by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee. It is in one way modest and in another ambitious. It does not attack the familiar basic limits on contributions from individuals to candidates or party committees. The $2,600 cap on contributions to a given candidate in each election, for instance, is not at issue in the case.

Instead, the challengers take issue with separate overall limits of $48,600 every two years for individuals’ contributions to all federal candidates and $74,600 to political party committees. (Federal law continues to ban direct contributions to candidates or political parties from corporations and unions.)

“These limits,” said Erin E. Murphy, a lawyer for McCutcheon, “simply seek to prevent individuals from engaging in too much First Amendment activity.”

Solicitor General Donald B. Verrilli Jr. responded that the aggregate limits were an important tool to prevent circumvention of the base limits. Allowing multiple contributions to interlocking political committees affiliated with candidates and parties could, he said, effectively funnel large sums from individuals to support given candidates. “Aggregate limits combat corruption,” Verrilli said.

The court’s more liberal members outlined various ways the base limits could be avoided. Justice Elena Kagan said it would be possible to write checks for $3.5 million to various entities in the hope the money would find its way to a candidate. “You give $3.5 million,” she said, “you get a very, very special place at the table.”

Justice Samuel A. Alito Jr. responded that the proposed end runs were fanciful.

“What I see are wild hypotheticals that are not obviously plausible and certainly lack any empirical support,” he said.

Justice Stephen G. Breyer repeatedly suggested that the case should be returned to a lower court to develop evidence on these points, but his proposal did not seem to gain traction.

Should the court agree that overall limits are unconstitutional, the decision could represent a fundamental reassessment of a basic distinction established in Buckley v. Valeo in 1976, which said that contributions may be regulated more strictly than expenditures because of their potential for corruption.

Independent spending, the court said, is political speech protected by the First Amendment. But contributions may be capped, the court said, in the name of preventing corruption.

The effect of the distinction is to allow unlimited spending from people, corporations, and unions so long as the spending is not coordinated with the candidate they support. Several justices suggested that it makes no sense in such an environment to limit direct contributions to candidates and parties.

“It’s not that we’re stopping people from spending big money on politics,” Scalia said.